kl08010_ex10-2.htm


    
      

    

     

    Exhibit 10.02

    
 

    AMENDED
AND RESTATED CONSULTING AGREEMENT

     

    AMENDED
AND RESTATED CONSULTING AGREEMENT dated as of August 5, 2008 (the "Agreement"), by and
between Ascendia Brands, Inc., with principal offices at 100 American Metro
Boulevard, Suite 108, Hamilton, NJ 08619 ("ABI”), and Carl Marks
Advisory Group LLC, with principal offices at 900 Third Avenue, New York, NY
10022 ("CMAG",
and together with ABI collectively the “Parties”, and each
individually a “Party”).

     

    WHEREAS,
ABI wishes to retain CMAG to provide certain financial restructuring and
management consulting services (the “Services”), as hereinafter
described;

     

    WHEREAS,
CMAG has agreed to perform the Services subject to the terms and conditions
hereinafter set forth; and

     

    WHEREAS,
ABI and its U.S. subsidiaries intend, on or about the time that this Agreement
is entered into, to file petitions under Chapter 11 of the U.S. Bankruptcy Code
(the “Bankruptcy Filing”) and the parties hereto acknowledge and agree that
performance of this Agreement shall be subject to the approval of the U.S.
Bankruptcy Court;

     

    NOW,
THEREFORE, in consideration of the above premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:

     

    1. Engagement:  ABI
engages CMAG, and CMAG hereby agrees to perform the Services as provided
herein.  Douglas A. Booth, a Partner of CMAG, shall serve as the
project partner on this engagement and shall supervise this engagement with
whatever additional resources from CMAG are reasonably required. Subject to the
foregoing, the Services shall be performed by Mr. Booth and Jack P. Wissman,
both of whom shall be on-site at ABI’s facilities on a full-time or
substantially full-time basis.

     

    2. Scope:  CMAG
shall provide the Services more fully described in Schedule A
hereto.  In addition, Mr. Booth shall, effective as of the filing of
the Bankruptcy Petition, act as the Chief Restructuring Officer of ABI, with
such duties, responsibilities and authority as the Board of Directors of ABI
shall, from time to time, determine.

     

    3. Term:  The
Term of this Agreement shall commence as of the date of this Agreement and shall
continue until the engagement is completed unless canceled with or without cause
by either Party on ten (10) business days prior written notice.  Upon
termination, all compensation and expenses owing to CMAG pursuant to Sections 4
and 5 below shall be immediately due and payable.

     

    4. Compensation:  In
consideration of the performance of the Services, ABI shall pay CMAG a fee of
$150,000 per month, payable in advance commencing from the date of this
Agreement.  In connection with the execution of this Agreement, and
prior to the Bankruptcy Filing, ABI has paid CMAG a retainer of $137,000 to be
applied against unpaid fees and expenses, if any.  Any unused portion
of the retainer shall be returned to ABI promptly upon termination of the
Agreement.  CMAG shall submit invoices for Services on a monthly
basis.  The parties acknowledge and agree that the payment of all fees
and expense arising hereunder

     

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

     

    shall be
subject to the approval of the Bankruptcy Court and shall not, in any event,
exceed the amounts allocated pursuant to the budget approved by the financial
institutions providing ABI’s debtor-in-possession financing
facility.

     

    5. Expenses:  ABI
shall reimburse CMAG for all reasonable expenses incurred by it in the
performance of the Services including, without limitation, transportation costs,
cost of hotels, meals and other out-of-pocket costs and
disbursements.  Expenses shall also include all reasonable legal fees
incurred by CMAG in connection with the performance of the services contemplated
by this Agreement, provided that ABI first consents in writing to the retention
of such counsel for such Services (which consent shall not be unreasonably
withheld or delayed).  ABI shall reimburse Expenses promptly upon
receipt of monthly invoices therefor, accompanied by appropriate supporting
documentation, subject where applicable to the approval of the Bankruptcy
Court.  

     

    6. Indemnification:  ABI
shall indemnify CMAG and hold it harmless for all acts or omissions, and all
decisions made, by CMAG (other than as a result of CMAG's gross negligence or
willful misconduct) while performing services for ABI and agrees to pay
directly, upon presentation thereof, all statements or invoices for all fees and
expenses, including reasonable attorneys' fees incurred by CMAG in connection
with the defense of any such claims based on CMAG's alleged acts, omissions or
decisions (other than made or taken through gross negligence or willful
misconduct), including any suit or proceeding relating thereto and any appeal
therefrom and the costs of any settlement thereof ("Claim"), provided that with
respect to costs incurred in any appeal of a judgment, ABI first consents to
appealing such judgment (which consent shall not be unreasonably withheld or
delayed) not withstanding anything to the contrary in Section 5.  CMAG
shall have the sole right to select counsel of its choosing and control the
defense of any such Claim, but ABI shall have the right to accept or reject the
settlement of any Claim for which indemnification is sought by CMAG hereunder
(which acceptance or rejection shall not be unreasonably withheld or
delayed).  For purposes of this Section "CMAG" includes its members,
officers, directors, employees and/or agents, and CMAG's affiliates and each of
their respective shareholders, members, officers, directors, employees and/or
agents.  The provisions of this Section 6 shall survive the term of
this Agreement.

     

    7. Proprietary
Work Product and Confidential Company Information:  ABI
acknowledges and agrees that any work product produced by CMAG is for the sole
use of ABI and is not intended for distribution to, or to be relied upon by, any
third parties.  

     

    In
addition, CMAG acknowledges and agrees that the persons performing Services
hereunder may acquire knowledge and information of a secret and confidential
nature.  CMAG further acknowledges and agrees that this information
constitutes valuable property of ABI generally not being disseminated or made
known to persons or organizations outside ABI, or if made known, being done so
only under specific and restrictive conditions such as to ensure that it does
not become readily available to the public, and also that confidential
information of others may be received by ABI with restrictions on its use and
disclosure.  Accordingly, CMAG agrees that:

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

     

    
      
        
          	
                      (i)

                	
                  CMAG
      and any person performing any Services hereunder shall not, during the
      term of this Agreement or at any time thereafter, disclose to anyone
      outside ABI or use in other than ABI’s business any secret or confidential
      information of ABI or its subsidiaries or affiliates, except as authorized
      by ABI.  ABI information that is not readily available to the
      public shall be considered secret and confidential for the purpose of this
      Agreement and shall include, but not be limited to, information relating
      to ABI, its subsidiaries and affiliates, customers, processes, products,
      apparatus, data, compounds, business studies, business and contracting
      plans, business procedures and
finances;

                


        

      

    

     

    
      	
                  (ii)

            	
              CMAG
      and any person performing Services hereunder shall not, during the term of
      this Agreement or at any time thereafter, disclose to any other person or
      use secret or confidential information of others, which, to the knowledge
      of CMAG, has been disclosed to ABI with restriction on the use or
      disclosure thereof, in violation of those
  restrictions;

            


    

     

    
      	
                  (iii)

            	
              CMAG
      and any person performing Services hereunder shall not, during the term of
      this Agreement or at any time thereafter, disclose to ABI or induce ABI to
      use, without prior permission of the owner, any secret or confidential
      information or material of others of which CMAG is or may become
      possessed; and

            


    

     

    
      	
                  (iv)

            	
              Notwithstanding
      the foregoing, CMAG and any person performing Services hereunder shall not
      be liable for the disclosure of information that may otherwise be deemed
      confidential hereunder:

            


    

     

    
      	
               
      

            	
              (a)  if
      the information is in, or becomes part of, the public domain, other than
      by CMAG's disclosure of the information;
or

            


    

     

    
      	
               
      

            	
              (b)  if
      the information is furnished to a third party by ABI without restriction
      on the third party's right to disseminate the information;
    or

            


    

     

    
      	
               
      

            	
              (c)  if
      the information is already of record in CMAG's files at the time of
      disclosure, or is disclosed to CMAG by a third party as a matter of right;
      or

            


    

     

    
      	
               
      

            	
              (d)  if
      the information is disclosed with ABI’s written approval;
    or

            


    

     

    
      	
               
      

            	
              (e)  if
      the information is compelled to be revealed via subpoena, civil
      investigative demand or other judicial or administrative
      process.

            


    

     

    
      The
provisions of this Section 7 shall survive the term of this
Agreement.

    

     

    8.    Client
Cooperation; Reliance on Client's Information:  ABI
acknowledges and agrees that the ability of CMAG to perform the Services
requires the reasonable cooperation and assistance of ABI and its
personnel.  Accordingly, ABI covenants and agrees to furnish to CMAG
all information, documents and other materials reasonably requested by CMAG and
to make available to CMAG for meetings, conference calls and otherwise, at
mutually convenient times, all personnel designated by CMAG to enable CMAG to
receive on a timely basis, in

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

     

    writing
and verbally, all information requested by CMAG related to its engagement under
this Agreement.  ABI acknowledges and agrees that CMAG, in performance
the Services, will be relying on the truth, completeness and accuracy of the
written documentation delivered and the verbal communications made by ABI and
its representatives to CMAG and its representatives in connection with all
matters relating to CMAG's engagement under this Agreement.

     

    9.     
Conflicts
of Interest:  Nothing contained in this Agreement or otherwise,
shall diminish or impair the right of CMAG to accept engagements, directly or
indirectly, from ABI’s lenders or other professionals provided such engagements
do not involve the relationship of the lenders or other professionals to
ABI.

     

    10.       
Limitation
on CMAG Liability:  To the extent permitted by applicable law,
if CMAG fails to perform its obligations under or is otherwise in breach of or
default under this Agreement, the maximum liability of CMAG in respect thereof
shall be limited to an amount equal to the aggregate of all fees and expenses
paid to CMAG pursuant to this Agreement.

     

    11.    Notices:  All
notices, requests, demands and other communications provided for by this
Agreement shall be in writing addressed to the parties at the address for such
party first set forth above, and shall be transmitted by either facsimile (fax),
personal or overnight courier delivery or by certified mail.  All
notices, etc. shall be deemed given when received by the party to whom it is
addressed.

     

    12.    Successors
and Assigns:  This Agreement shall inure to the benefit of, and
be binding upon, each of ABI and CMAG and their respective successors and
assigns.  Neither party may assign its rights or delegate its
obligations under this Agreement without the written consent of the other party,
which consent shall not be unreasonably withheld or delayed.

     

    13.    Applicable
Law:  This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York as if the contract were
performed wholly within the state.

     

    14.    Amendments:  No
amendment, modification, termination or waiver of any provision of this
Agreement or consent to any departure by any party therefrom shall be effective
unless in writing signed by the parties hereto, and, in any event, shall be
effective only in the specific instance and for the specific purpose for which
given.

     

    15.    No
Waiver; Cumulative Remedies:  No failure or delay on the part
of either party in exercising any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude the exercise of any other right, power or
remedy.  The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.

     

    16.    Headings:  Headings
in this Agreement are for convenience only and shall not be used to interpret or
construe its provisions.

     

    17.    Counterparts:  This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.

     

     

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

     

    18.    Waiver of
Jury Trial:  Each of the parties to this Agreement hereby
waives its right to a jury trial with respect to any claim, action, suit or
proceeding made or brought by one of the parties against the others in
connection with or arising under this Agreement.

     

    19.    Publication:  CMAG
may, at its expense, place an announcement in such newspapers, periodicals,
electronic publications and other print as CMAG may choose stating that CMAG has
acted as a consultant for the Company in connection therewith.

     

    20.    Independent
Contractor Relationship:  CMAG shall serve as an independent
contractor to ABI pursuant to the terms and conditions of this
Agreement.  This Agreement does not create and shall not be construed
to create a relationship of principal and agent, joint venturer, co-partners,
employer and employee, master and servant or any similar relationship between
CMAG and ABI, and the parties hereto expressly deny the existence of any such
relationship.

     

    21.    Search
Fees:  Should CMAG introduce any individual to ABI, and ABI
subsequently hires that individual, ABI will pay CMAG an additional fee equal to
25% of the total first year's compensation package of that
individual.  If ABI subsequently hires any CMAG personnel, members,
officers, directors, employees and/or agents, ABI will pay CMAG an additional
fee equal to 100% of that individual’s total prior year’s compensation
package.

     

    22.    Prior
Agreement:  Phase II of the Prior Agreement (as defined
therein) shall be deemed to terminate effective as of February 13, 2008 and the
Prior Agreement is hereby amended as follows:

     

    
      	
              a.  

            	
              By
      deleting the second and third sentences of Section
  3;

            


    

     

    
      	
              b.  

            	
              By
      deleting the words “or within the Residual Period” in the first sentence
      of Section 4.C; and

            


    

     

    
      	
              c.  

            	
              By
      replacing the text of Section 9 with the words “Intentionally
      Omitted”.

            


    

     

    [remainder
of page intentionally left blank]

     

     

    
 

    
      
         


      

      
        5

        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first
written above.

     

    


     

    ASCENDIA BRANDS, INC.

     

    By: /s/ Andrew
Sheldrick                   


    Andrew Sheldrick

    General Counsel

     

    CARL MARKS ADVISORY GROUP
LLC

     

    By:  /s/ Douglas A.
Booth                  


    Douglas A. Booth

    Partner

     

     

     

     

     

    6